UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-51091
Summary Calendar
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LAWRENCE T. DALY, Individually and as
Next Friend of Lawrence T. Daly, Jr.;
LISA DALY, Individually and as Next Friend
of Lawrence T. Daly, Jr.,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA, ET AL.,
Defendants,
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
(SA-97-CV-184)
_________________________________________________________________
November 12, 1998
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
In this medical malpractice action under the Federal Tort
Claims Act, Appellants contest the summary judgment granted the
United States and the denial of their motion for reconsideration.
The parties consented to proceed before a magistrate judge.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
Appellants state that Lawrence T. Daly died in December 1997,
but they have not moved to substitute his representative. Because
we conclude that summary judgment was appropriate, there is no need
to delay a decision for the formality of substitution of the
deceased’s representative. See FED. R. APP. P. 43(a).
Appellants contend that the United States was negligent in
failing to diagnose Lawrence T. Daly’s cancer before it
metastasized and became inoperable. Based upon our required de
novo review of the record, we AFFIRM essentially for the reasons
stated by the magistrate judge. See Daly v. United States, No. SA-
97-CV-184 (W.D. Tex. Nov. 5, 1997 & Dec. 9, 1997). In sum,
Appellants offered no expert evidence raising a genuine issue of
material fact with respect to causation of Mr. Daly’s injuries.
See Rodriguez v. Pacificare of Texas, Inc., 980 F.2d 1014, 1020
(5th Cir.), cert. denied, 508 U.S. 956 (1993); Tilotta v. Goodall,
752 S.W.2d 160, 161 (Tex. App. 1988, writ denied).
It is quite arguable that Appellants have failed to properly
brief the issue concerning the motion to reconsider. See F ED. R.
APP. P. 28(a)(6). In any event, although the magistrate judge
applied an overly stringent standard in considering Appellants’
motion for reconsideration (filed within 10 days of entry of
judgment; therefore, FED. R. CIV. P. 59(e) applied), see Lavespere
v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir.
1990) (applying abuse of discretion standard of review to motion
for reconsideration under Rule 59(e)), the ruling—even if the
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motion had been granted, the potential additional evidence would
not have affected the judgment—was not an abuse of discretion.
AFFIRMED
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